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Court of Appeal, Second District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Titus Lee BROWN, Jr., Defendant and Appellant.

Crim. B023391.

Decided: January 30, 1989

Klein and Crain, Rowan K. Klein and Michael M. Crain, Los Angeles, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., John R. Gorey, Supervising Deputy Atty. Gen., Robert David Breton, Deputy Atty. Gen., for plaintiff and respondent.


This is an appeal from a judgment convicting appellant Titus Lee Brown (hereinafter “Brown”) of murder in the second degree (Pen.Code, § 187) 1 and the finding true of his use of a deadly weapon in the commission thereof (§ 12022(b)) entered upon the trial court's modification of the jury verdict of first degree murder and from the order denying Brown's motion for a new trial on grounds of prosecutorial misconduct.   While we find the conduct of the prosecutor in this case to be totally inimical to the interests of justice, we affirm inasmuch as the trial court's reduction of the degree of murder to second degree sufficiently cured any prejudice to obviate the need for a new trial.


Brown was charged by way of information with murder in conjunction with which it was alleged that he used a dangerous or deadly weapon, a knife.   The jury returned its verdict finding Brown guilty and fixed the degree as being murder in the first degree and found the use of a deadly weapon's allegation true.   Brown moved for a new trial on the grounds of prosecutorial misconduct (§ 1181, subd. (5)) premised on the prosecutor's alleged knowing introduction and argument of evidence she knew to be false.   The court aided by the prosecutor's admission that in her argument to the jury positing that the homicide was committed in the course of a robbery, evidenced by the fact that jewelry and money of the victim were missing, was made at a time when she knew that those items had been returned to the next of kin, found prejudicial prosecutorial misconduct.   However, the court determined that the prejudice only went to the degree of the offense and not to the underlying charge and ruled that it could be remedied by a modification of the verdict.   Citing section 1181, subdivision (6), the trial court modified the verdict to murder in the second degree and denied the motion for new trial.   At the sentencing, Brown's new counsel (present appellate counsel) renewed the motion for new trial reiterating the ground of prosecutorial misconduct but the motion was again denied.   Brown was sentenced to state prison for a term of fifteen years to life with a consecutive one year weapon enhancement.


Around midnight on August 17, 1984, Israel Guzman Rangel (hereinafter “Guzman”) arrived at the Las Chavela's bar parking his car in the lot adjacent to a neighboring hot dog stand.   Concurrent with this, Maria Velasquez (hereinafter “Velasquez”) and Ricardo Pimental Baldovinos (hereinafter “Pimental”) were parked in his Ford Torino outside her residence at Adams and Central but positioned so that they were facing away from the intersection.   While utilizing the mirror mounted on the reverse side of the sunvisor, Velasquez saw the reflection of three individuals struggling.   She could not discern if they were male or female.   Simultaneously, both she and Pimental heard one of them yell “They're killing me” in Spanish.   Pimental turned and viewed the scene through the rear window.   He then bent down to retrieve a handgun he had secreted beneath the seat.

By the time he glanced back through the rear windshield, Pimental could see that the situation entailed two black men pulling a third individual from the sidewalk into the street and away from the parking lot.   Pimental ascertained this third person was Latino 2 and appeared to be covered with blood.   As the headlamps of an oncoming car lit up the area, Pimental watched the shorter of the two black men, walk away from the remaining black man and the Hispanic victim, proceeding along a wall and running down an alley.

Pimental exited the vehicle with his gun and Velasquez followed behind remaining on the other side of the street.   As Pimental approached he could see Brown 3 pulling the victim into the parking lot.   Approaching the altercation, Pimental brandished his weapon stating “Leave him alone.”   At the same time, Velasquez heard the victim, say, “Please don't kill me” in Spanish.   Although Pimental knew that the gun was empty, he activated the slide to demonstrate that he was serious.   In response, Brown shoved the victim towards Pimental extracting the knife.   As Brown removed the knife from the left chest of the victim, Pimental observed it to have a six-inch blade.   When the knife was removed, blood began to spurt from the wound.   Brown fled the scene and Pimental knelt by the victim, but did not touch him after being warned against doing so by a bystander.   Nevertheless, in so doing, Pimental got blood on his clothing and shoes.

The victim, Guzman, ultimately expired of his wounds at the hospital, the cause of death determined by the coroner to be a stab wound to the left thorax which penetrated the heart.   Guzman's jewelry and wallet were returned to the next of kin by hospital personnel with the exception of a Paramount High School ring which the police recovered at the crime scene.

When the police responded to the scene, one of the bystanders pointed Pimental out to an officer who approached and inquired if Pimental could relate what transpired.   Pimental replied that he and Velasquez just happened on the scene and observed the victim lying there.   Fear prevented Pimental from either advising the officers that he witnessed the stabbing or giving them a description of the assailants.   However, when the detectives contacted Pimental to come to the police station the following day for an interview they observed the blood on his shoes.   This fact together with their disbelief of his previous statements caused the investigators to detain Pimental until they could interview Velasquez.   Upon the officers return from speaking with Velasquez and their informing Pimental that she related the truth about the incident, he detailed what had occurred and provided descriptions of the individuals involved.

Based upon the statements provided by Pimental, Brown was arrested on August 20, 1984, and the following day Brown's brother, Larry was taken into custody.   After being advised of and waiving his Miranda rights, Brown stated that on the night in question he was at home 4 watching television and fell asleep at approximately 11:30 p.m.   He was aware that a stabbing occurred at Adams and Central having been informed of the incident by his father.

The following day Brown was re-Mirandized and re-interviewed.   On this occasion, Brown stated that approximately 10:30 p.m. on the evening of August 17, he was out with Larry and Robert Boyd (hereinafter “Boyd”) in the vicinity of 25th and Main but went home when the latter two decided to go to the store.   Brown related that about midnight or 12:15 a.m., Larry returned home out of breath explaining that he and Boyd went to Harry's Corner liquor store at 24th and Central and walked southbound on Central from there until Robert beat up a Mexican and stabbed him.   While Brown's parents and two of his sisters went to the location, Larry advised Brown not to go because the Mexican was probably dead.   According to Brown, Boyd carried a buck knife which Brown saw only two days prior to this incident.

Detective J.D. Furr contacted Boyd and investigated his whereabouts on the relevant evening whereupon he prepared separate lineup cards.   Two of the cards contained photographs of Brown while the third and fourth contained pictures of Larry and Boyd respectively.   Although Pimental positively identified both photographs of Brown as depicting “the man that killed,” 5 he could not recognize anyone in the lineup cards containing either Larry's or Boyd's pictures.

On the night in question, Karen Christopher, an employee in a neighboring fast food franchise, observed a male Mexican staggering in the street but did not see anyone around him.   Although she saw a lot of blood in the street in the man's vicinity, she noted no injury other than a two-inch scratch on his face.   Ms. Christopher did not call the police because fights are a common occurrence in that area.

In her argument to the jury, the prosecutor repeatedly urged the jury to return a verdict of guilty of murder and argued that it should be fixed as being in the first degree premised on the theory that the homicide occurred during the course of a robbery.   The prosecutor suggested that this conclusion was evidenced by the fact that, with the exception of the school ring which the police recovered from the sidewalk, neither the jewelry which Guzman was seen wearing on the night in question nor money was found on the body when it was brought to the hospital.   However, the next court day following the jury's rendering its verdict finding Brown guilty of murder in the first degree, the prosecutor admitted that prior to the commencement of trial her investigator advised her that Guzman's gold chains and wallet had been given to members of the family by personnel at the hospital to which he was transported by the paramedics.   Despite being so advised, she did not convey this fact to the defense.


Brown asserts that reversal is mandated:  (1) because the trial court erred in denying the motion for new trial in light of the prosecution's knowing presentation of false evidence;  (2) that given the trial court's finding of prosecutorial misconduct, modification of the verdict was statutorily precluded and that the granting of the motion for new trial was compelled as a matter of law;  (3) that even were the option of verdict modification legally available to negate the effects of prosecutorial misconduct, such remedy was not available given the facts adduced at the trial of the instant case;  (4) that a new trial is necessitated by virtue of the court's erroneous admission of Brown's statements to the police; 6  and (5) ineffective assistance of counsel.


1. The Trial Court Properly Modified the Verdict Rather Than Granting a New Trial in Response to the Prosecutorial Misconduct.

 Appellant's contention that the trial court committed reversible error in denying the motion for new trial and merely reducing the degree of the offense of which he stands convicted is premised on the argument that the court below, by virtue of its finding of prosecutorial misconduct, was limited by statute to the option of either granting or denying the motion for new trial.   While we agree with appellant that a court in considering a defendant's statutory motion for new trial is limited to the grounds set forth therein, we nevertheless find that a nonstatutory motion that raises due process considerations is not similarly restricted.   Therefore, we conclude reversal is not mandated.

At the outset, we must note that we deplore the conduct of the prosecutor below.   Knowing before the commencement of trial that the victim's valuables were placed in the possession of the next of kin by the personnel at the hospital to which he was transported, she nonetheless manipulated the direct examination of the investigating officer to create the impression that inasmuch as the victim's gold chains and money were taken by the perpetrators of the murder, the homicide occurred during the course of a robbery.   Not being satisfied with merely leaving the jurors with this false impression,7 she exploited this erroneous belief by arguing that the fact the deceased's chains and currency were not recovered established that the homicide was committed during a robbery, and, therefore, the jurors should return a verdict not only finding defendant guilty of murder but designating it as being in the first degree.   Not until the court day after the jury returned the verdict into which it had been intentionally misled by the actions and arguments of the prosecutor did she reveal her deception to the trial judge.   We abhor the conduct of the prosecutor in this case.   Zeal to prevail at trial even in the context of the most heinous of offenses can never blind the prosecution to the fact that their primary objective is not to secure a conviction but to insure that justice is done.  “This distinctive role of the prosecutor is expressed in Ethical Consideration (EC) 7–13 of Canon 7 of the American Bar Association (ABA) Model Code of Professional Responsibility (1982):  ‘The responsibility of a public prosecutor differs from that of the usual advocate;  his duty is to seek justice, not merely to convict.’ ”  (Young v. U.S. ex rel. Vuitton Et Fils, S.A. (1987) 481 U.S. 787, 107 S.Ct. 2124, 2135, 95 L.Ed.2d 740.)

 The trial court recognized that the prosecutor's departure from her ethical obligation prejudiced appellant and sought to redress the harm by modification of the verdict in terms of reducing the degree of homicide found by the jury from first to second degree.   Appellant objected to this proposed redress before the trial court and again asserts on appeal that a court's power of modification is statutorily restricted to those cases where the court finds the verdict to be contrary to law or evidence (see Pen.Code, § 1181, subd. 6) and is not available as a remedy where the claim in the new trial motion is limited to an assertion of prosecutorial misconduct (Pen.Code, § 1181, subd. 5).8  While we agree that new trial motions brought pursuant to Penal Code section 1181 are thus restricted (see People v. Serrato (1973) 9 Cal.3d 753, 760–761, 109 Cal.Rptr. 65, 512 P.2d 289;  and People v. Skoff (1933) 131 Cal.App. 235, 240, 21 P.2d 118),9 nonstatutory motions based on due process grounds are not similarly circumscribed (People v. Fosselman (1983) 33 Cal.3d 572, 582, 189 Cal.Rptr. 855, 659 P.2d 1144.)   That is, as the Supreme Court held in Fosselman, Penal Code section 1181 “․ should not be read to limit the constitutional duty of trial courts to ensure that defendants be accorded due process of law.  ‘Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused.’  (Glasser v. United States (1942) 315 U.S. 60, 71 [62 S.Ct. 457, 465, 86 L.Ed. 680] ․ [other citations omitted].)  The Legislature has no power, of course, to limit this constitutional obligation by statute․  [Citation.]”

While Fosselman concerned the issue of the adequacy and the courtroom performance of defense counsel, the Supreme Court's conclusion concerning the unique position occupied by the trial judge in making these assessments is equally applicable with regard to the conduct of counsel for the prosecution and the effect thereof on the trial.   Among the conduct of prosecutors which trial court's have scrutinized with particular care is that concerning the presentation of false or misleading evidence.   In such instances, as appellant correctly asserts, the United States Supreme Court has unequivocally held that the prosecution's knowing use of false or perjured testimony constitutes a violation of due process.  (See Mooney v. Holohan (1935) 294 U.S. 103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791;  Pyle v. Kansas (1942) 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214;  Napue v. Illinois (1959) 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217;  Colorado v. Connelly (1986) 479 U.S. 157, 107 S.Ct. 515, 522, 93 L.Ed.2d 473.)   As the Supreme Court reiterated in Connelly, “ ‘[t]he aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false.’  Lisenba v. California 314 U.S. 219, 236 [62 S.Ct. 280, 290, 86 L.Ed. 166] ․ (1941).”  (107 S.Ct. at 522.) 10

This precisely characterizes the situation before us.   The evidence adduced from the investigating officer as to the whereabouts of the jewelry and money of the victim was not perjured or false in the traditional sense inasmuch as the officer was testifying truthfully as far as his own personal knowledge was concerned.   Rather, what was false was the impression which the prosecutor sought to leave in the minds of the jurors.   The prosecutor knew the evidence was false even though the witness did not and principles of due process were contravened when not only did she not undertake to correct those patently false inferences but rather exploited them in argument to the jury.   As the United States Supreme Court stated in Napue v. Illinois, supra, 360 U.S. at 269, 79 S.Ct. at 1177, “․ it is established that a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment,․  [Citations.]   The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears․  [Citations.]”   California law is to the same effect with regard to the knowing use by the prosecution of false or misleading testimony as constituting the denial of a criminal defendants' right of due process.   The Supreme Court most recently reaffirmed this premise in People v. Morris, supra when, reiterating the holding of People v. Phillips (1985) 41 Cal.3d 29, 222 Cal.Rptr. 127, 711 P.2d 423, it held that “․ the prosecution must [not only] disclose ․ any inducements made to a prosecution witness, [but] must also correct any false or misleading testimony by the witness relating to inducements.  (41 Cal.3d at pp. 46–47 [222 Cal.Rptr. 127, 711 P.2d 423], italics added.)”  (46 Cal.3d at 34, 249 Cal.Rptr. 119, 756 P.2d 843;  emphasis in original.)

As appellant's due process rights were infringed by the prosecution's use of false or misleading evidence exacerbated by argument based thereon, the court had not merely the right but the “constitutional duty” (People v. Fosselman, supra ) to ameliorate the effects of that constitutional deprivation by modifying the verdict in a manner that would purge the taint.   This the trial court accomplished by a reduction in the degree of the homicide from first to second degree.

 Appellant protests this manner of resolution of the issue raised by his motion for new trial contending that the action of the prosecutor proceeding by way of evidence and argument on the theory of first degree murder predicated on a homicide occurring during the commission of a robbery, necessarily precluded the jury from finding intent to kill, an essential element of second degree murder.   While it is clear, and the trial court expressly found, that the jury based its verdict of murder in the first degree on the doctrine of felony murder, the modification of the verdict in lieu of granting the motion for new trial was proper.

The Supreme Court enunciated in People v. Serrato, supra, that the purpose of the amendment to Penal Code section 1181 permitting a trial court to modify a verdict “․ was to obviate the necessity of a new trial when the trial court, on motion for a new trial, ․ believed that the evidence established the lesser offense but not the greater.  (People v. Kelley (1929) 208 Cal. 387, 391–392 [281 P. 609]․)”  (See also People v. McClellan (1980) 107 Cal.App.3d 297, 301, 165 Cal.Rptr. 603.)   As we recognized in People v. McClellan, supra, 107 Cal.App.3d at p. 301, 165 Cal.Rptr. 603, in carrying out the function of considering whether to modify the verdict, the court must conduct an independent reweighing of the evidence, sitting in essence as the thirteenth juror.  “The trial judge's determination will not be overturned absent a clear abuse of discretion.  (See People v. Serrato ․ [supra, 9 Cal.3d at 761, 109 Cal.Rptr. 65, 512 P.2d 289];  People v. Borchers (1958) 50 Cal.2d 321, 328, 330 [325 P.2d 97] )․”  (Id.)   Rather, “[t]he modified verdict must be upheld if there is substantial evidence to support it.  (People v. Green (1980) 27 Cal.3d 1, 55 [164 Cal.Rptr. 1, 609 P.2d 468]․)”  (People v. Capps (1984) 159 Cal.App.3d 546, 551, 205 Cal.Rptr. 898.)

As respondent correctly points out, there was ample evidence in the record from which the jurors could find both intent and malice beyond a reasonable doubt.11  Among the facts adduced at trial from which the jurors could find the requisite intent and malice to support a verdict of second degree murder are:  the nature of the weapon utilized (i.e., a knife possessing a large blade);  the stab wound being inflicted directly into the heart;  the victim's being unarmed and of smaller stature than appellant;  the failure of appellant to cease his assault on the victim until confronted by a third person brandishing a gun;  and the absence of any indication of provocation on the part of the decedent.   It is well settled that malice may be inferred as a matter of law when the evidence establishes the commission of a homicide perpetrated by a criminal defendant absent any provocation.  (See Pen.Code, § 1105.12 )  This was reiterated by the Supreme Court in People v. Bloyd (1987) 43 Cal.3d 333, 233 Cal.Rptr. 368, 729 P.2d 802 when, reaffirming the teaching of People v. Lines (1975) 13 Cal.3d 500, 505, 119 Cal.Rptr. 225, 531 P.2d 793, the court stated that “․ [i]t is settled that the necessary element of malice may be inferred from the circumstances of the homicide․   Thus this court has declared that ‘[w]hen the killing is proved to have been committed by the defendant, and nothing further is shown, the presumption of law is that it was malicious and an act of murder;  but in such a case the verdict should be murder of the second degree, and not murder of the first degree.’ ”  (43 Cal.3d at p. 349, 233 Cal.Rptr. 368, 729 P.2d 802, quoting People v. Lines, supra.)

We find that it was proven to the jury beyond a reasonable doubt that the killing was committed by appellant.   This is implicit in the verdict which necessitated the jury's rejection of appellant's alibi defense and its determination beyond a reasonable doubt that he was a principal in the commission of the homicide.   Therefore, the court below committed no error in modifying the verdict to second degree murder pursuant to Lines (as reaffirmed by Bloyd ) upon which the trial court expressly relied.

Contrary to appellant's assertion, this reduction in degree did not violate due process by depriving him of the right to trial by jury on issues of intent and malice.   There is no due process “․ violation ․ when, as here, a court finds the evidence insufficient to support the jury's verdict and then decides to modify that verdict (rather than to grant a new trial) based on its conclusion a reasonable jury could have properly determined there was express malice․  [Citation.]   So long as the modified verdict relies exclusively on evidence presented to the jury (see People v. Watson (1983) 150 Cal.App.3d 313, 319 [198 Cal.Rptr. 26] ․), the court does not violate a defendant's right to trial by jury when it finds a fact or element which the jurors also could reasonably have found on the evidence presented.”  (People v. Capps, supra, 159 Cal.App.3d at p. 553, 205 Cal.Rptr. 898.)

In light of all the foregoing, the decision by the trial court to fashion a remedy for the clear violation of appellant's due process rights by a modification of the verdict was not only proper but prudent.  “That injustice ․ [was] righted by ․ [the trial] court without subjecting the State and the ․ [appellant] to the delay and expense of a new trial․”   (People v. Lynch (1943) 60 Cal.App.2d 133, 141, 140 P.2d 418.)   Thus, while appellant's claim cannot be discounted as specious or wholly without merit, his conclusion that the prejudice to which he was subjected was not remedied by the trial court's modification of the verdict and that such modification was without support in law or the record must be rejected.

2. Appellant Has Failed to Sustain His Burden of Proving Ineffective Assistance of Counsel.

 Appellant urges that reversal is mandated on the ground that trial counsel was ineffective for failing to request that the jury be instructed on the basis of CALJIC 2.91 and 2.92 13 regarding eyewitness identification.   We find this contention to be without merit.

“The burden of proving ineffective assistance of counsel is on the defendant.  (People v. Pope (1979) 23 Cal.3d 412, 425 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].)  To establish constitutionally inadequate representation, the defendant must show that (1) counsel's representation was deficient, i.e., it fell below an objective standard of reasonableness under prevailing professional norms;  and (2) counsel's deficient representation subjected the defense to prejudice, i.e., there is a reasonable probability that but for counsel's failings the result would have been more favorable.   (People v. Ledesma (1987) 43 Cal.3d 171, 216–218 [233 Cal.Rptr. 404, 729 P.2d 839];  People v. Fosselman, supra, 33 Cal.3d at p. 584 [189 Cal.Rptr. 855, 659 P.2d 1144];  People v. Pope, supra;  see Strickland v. Washington (1984) 466 U.S. 668, 687–696 [104 S.Ct. 2052, 2064–2069, 80 L.Ed.2d 674, 693–699].)  When a defendant makes an ineffectiveness claim on appeal, the appellate court must look to see if the record contains any explanation for the challenged aspects of representation.   If the record sheds no light on why counsel acted or failed to act in the manner challenged, ‘unless counsel was asked for an explanation and failed to provide one, or unles there simply could be no satisfactory explanation’ (People v. Pope, supra, 23 Cal.3d at pp. 425–426 [152 Cal.Rptr. 732, 590 P.2d 859] ), the case is affirmed (ibid.).  In such cases, the ineffective assistance claim is more appropriately made in a petition for habeas corpus.  (Ibid.;  see People v. Ledesma, supra, 43 Cal.3d at p. 218 [233 Cal.Rptr. 404, 729 P.2d 839].)”  (People v. Babbitt (1988) 45 Cal.3d 660, 707, 248 Cal.Rptr. 69, 755 P.2d 253;  see also Strickland v. Washington (1984) 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 and People v. Bunyard (1988) 45 Cal.3d 1189, 1215, 249 Cal.Rptr. 71, 756 P.2d 795.) 14

Expanding upon the necessary deference which must be accorded to the tactical judgments of trial counsel the Supreme Court in Bunyard reiterated the holding of Strickland that “[j]udicial scrutiny ․ must be highly deferential.   It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all to easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.  [Citation.]   A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.   Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance;  that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ ”  (466 U.S. at p. 689, 104 S.Ct. at p. 2065 (emphasis added);  accord Kimmelman v. Morrison (1986) 477 U.S. 365, 383, 106 S.Ct. 2574, 2588, 91 L.Ed.2d 305, 325.)  (45 Cal.3d at 1215, 249 Cal.Rptr. 71, 756 P.2d 795.)

Here, as in Babbitt, the record below provides nothing from which we can discern defense counsel's reasoning or motivation in regard to the specific omission under review.   Therefore, we find that appellant has failed to negate the strong presumption of Strickland and Bunyard justifying the conduct of counsel as an exercise of appropriate trial strategy.

Respondent correctly points out that the gist of CALJIC 2.91 was conveyed to the jury by means of their being instructed with CALJIC 4.50.15  The teaching of the Supreme Court in People v. Blair (1979) 25 Cal.3d 640, 663, 159 Cal.Rptr. 818, 602 P.2d 738 forecloses any debate on this issue.   In Blair the Supreme Court cited with approval a case wherein “․ it was held ․ that a court is not required to give CALJIC 2.91 on its own motion since the correctness of identification does not constitute an affirmative defense, and the court's general instructions on credibility and burden of proof were sufficient to inform the jury of the test they should apply to the identification evidence.  (People v. Richardson (1978) 83 Cal.App.3d 853, 860–862 [148 Cal.Rptr. 120] ․;   disapproved on other grounds in People v. Saddler (1979) 24 Cal.3d 671, 682 [156 Cal.Rptr. 871, 597 P.2d 130].)”

Here, as in Blair, “․ the court gave such general instructions, and it also told the jury that if they had a reasonable doubt that defendant was present when the crimes were committed, they should find him not guilty.  (CALJIC No. 4.50.)   It was unmistakable to the jury that defendant was challenging the reliability of ․ [the] identification, and these instructions were sufficient to inform them that the prosecution had the burden of proof on that issue and that defendant should be acquitted if they had a reasonable doubt on the matter.”  (Id.)

With respect to CALJIC 2.92, not only is there no sua sponte duty on the part of a trial court to instruct the jury as to the principles therein enunciated, but it would not have been appropriately given in the instant case.   As the Supreme Court most recently held in People v. Wright (1988) 45 Cal.3d 1126, 1144, 248 Cal.Rptr. 600, 755 P.2d 1049.  “CALJIC 2.92 or a comparable instruction should be given when requested in a case in which identification is a crucial issue and there is no substantial corroborative evidence.  (See [People v.] McDonald ․ [1984] 37 Cal.3d ․ [351,] 377 [208 Cal.Rptr. 236, 690 P.2d 709] )․”  While identification was a crucial issue below, the trial court could justifiably have refused to instruct the jury with CALJIC 2.92 in light of the substantial evidence corroborating the identification of appellant.   Included among this corroborative evidence was the fact that appellant matched the physical description provided by both witnesses;  the fact that he resided less than one block from the crime scene;  and, the fact he implicated himself by his own statements to the investigating officer that his brother and his brother's companion who he knew to carry a buck knife were involved in the stabbing of an individual of the same ethnicity as the victim who, according to the brother, was probably dead.

What is significant about the contents of appellant's statement to the investigating officer is that despite appellant's denials that he was present at the crime scene, he exhibited precise knowledge as to the number of individuals involved, the ethnicity of the victim and the nature of the weapon utilized.   Moreover, appellant's stature in comparison to that of his brother bore the same relationship that the assailant had with respect to his companion.   Thus, appellant's own purportedly exculpatory statements substantiated the eyewitnesses' identification of him.   In light of this substantial corroboration of the identification of appellant, the giving of an instruction based on CALJIC 2.92 would not have been warranted in this case even if requested.  (People v. Wright, supra;  People v. McDonald, supra.)

From the foregoing, it is clear that this is not a case where no possible explanation for counsel's failure to request both CALJIC 2.91 and 2.92 can be envisioned.   Counsel could have readily concluded as to 2.91 that its principles were amply satisfied by CALJIC 2.20 and 4.50 and that it would have been rejected as unnecessarily duplicative.16  (See People v. Blair, supra, 25 Cal.3d at p. 663, 159 Cal.Rptr. 818, 602 P.2d 738.)   Likewise, counsel could have opted not to burden the trial court with a futile request for CALJIC 2.92, in realization of the fact that the substantial corroboration of the identification evidence rendered that instruction not justified by the record.  (People v. Wright, supra, 45 Cal.3d at 1144, 248 Cal.Rptr. 600, 755 P.2d 1049;  People v. McDonald, supra, 37 Cal.3d at p. 377, 208 Cal.Rptr. 236, 690 P.2d 709.)

However, even were we to accept appellant's contention that no possible justification could be asserted for counsel's failure to request these instructions, reversal would still not be compelled.   Such error of trial counsel would constitute ineffective assistance necessitating reversal “․ only if ‘the court “after an examination of the entire cause, including the evidence” is of the “opinion” that it is reasonably probable that a result more favorable to (defendant) would have been reached in the absence of the error.’  (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)  [¶] Our consideration of the entire record in this case leads us to conclude that it is not reasonably probable that had the requested instruction[s] been given, the jury would have reached a verdict more favorable to defendant.   We base this holding on (a) the overall strength of the evidence;  (b) the fact that factors relating to the reliability of eyewitness identifications were brought to the jury's attention by (i) cross-examination, (ii) opening and closing arguments of counsel, and (iii) the jury instructions given;  and (c) the absence of any indication that the jury was uncertain or confused.”  (People v. Wright, supra, 45 Cal.3d at 1144–1145, 248 Cal.Rptr. 600, 755 P.2d 1049.)

Inasmuch as appellant cannot establish the unavailability of any satisfactory explanation for trial counsel's failure to seek to have the court instruct the jury with CALJIC 2.91 and 2.92 and given appellant's inability to demonstrate the probability of a more favorable result had those instructions been given, we find the claim of ineffective assistance of counsel to be devoid of merit.  (People v. Babbitt, supra, 45 Cal.3d at p. 707, 248 Cal.Rptr. 69, 755 P.2d 253.)


The judgment of the trial court convicting appellant of murder in the second degree is affirmed.



1.   All statutory references are to the Penal Code unless otherwise noted.

2.   Both Pimental and Velasquez were enabled to make these ethnic determinations by virtue of the individuals being illuminated by the headlights of an oncoming car as well, in the case of Pimental, by virtue of the activated streetlights in the area.

3.   Pimental was able to identify this individual in court as Brown based upon his having been illuminated at the scene by the lights of the approaching vehicle and neighboring business establishments.   Moreover, Brown looked directly into Pimental's face when Pimental pointed the gun at him.

4.   It should be noted that both Brown and his brother were arrested at their home located less than one block from the site of the homicide.

5.   It is significant to note that Brown's nasal features shown in the photograph as well as his height correspond to the description provided the investigators by Pimental.

6.   Appellant withdrew this issue in light of its having been resolved by the Supreme Court's decision in People v. Kimble (1988) 44 Cal.3d 480, 244 Cal.Rptr. 148, 749 P.2d 803.

7.   Counsel for appellant is correct when he contends on the authority of Giglio v. U.S. (1972) 405 U.S. 150, 153–154, 92 S.Ct. 763, 765–766, 31 L.Ed.2d 104 and Napue v. Illinois (1959) 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 that the failure to correct false evidence is just as offensive to the precepts of justice as the knowing presentation of false testimony.

8.   Penal Code section 1181, subdivisions 5 and 6 provides as follows:“5. When the court has misdirected the jury in a matter of law, or has erred in the decision of any question of law arising during the course of the trial, and when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury;“6. When the verdict or finding is contrary to law or evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed;․”

9.   Skoff holds that if “․ the defendant fails to move for a new trial based on insufficiency of the evidence, the, the order granting the motion may not be supported on that ground.”  (See People v. Johnston (1940) 37 Cal.App.2d 606, 609, 100 P.2d 307, and generally Witkin, Criminal Procedure, § 573, p. 578.)

10.   In its most recent pronouncement on the subject the California Supreme Court has forcefully stated the same principle (see People v. Morris (1988) 46 Cal.3d 1, 29–30, 33–34, 249 Cal.Rptr. 119, 756 P.2d 843).

11.   It should be noted that, as appellant concedes, the trial court did instruct the jury on second degree murder.

12.   Penal Code section 1105 provides:“(a) Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon him, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.”

13.   CALJIC 2.91 states:“The burden is on the State to prove beyond a reasonable doubt that the defendant is the person who committed the offense with which he is charged.“If, after considering the circumstances of the identification [and any other evidence in this case], you have a reasonable doubt whether defendant was the person who committed the offense, you must give the defendant the benefit of that doubt and find him not guilty.”CALJIC 2.92 advises the jury:“Eyewitness testimony has been received in this trial for the purpose of identifying the defendant as the perpetrator of the crime[s] charged.   In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as other factors which bear upon the accuracy of the witness' identification of the defendant, including, but not limited to, any of the following:“[The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act;]“[The stress, if any, to which the witness was subjected at the time of the observation;]“[The witness' ability, following the observation, to provide a description of the perpetrator of the act;]“[The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;]“[The cross-racial or ethnic nature of the identification;]“[The witness' capacity to make an identification;]“[Evidence relating to the witness' ability to identify other alleged perpetrators of the criminal act;]“[Whether the witness was able to identify the alleged perpetrator in a photographic or physical lineup;]“[The period of time between the alleged criminal act and the witness' identification;]“[Whether the witness had prior contacts with the alleged perpetrator;]“[The extent to which the witness is either certain or uncertain of the identification;]“[Whether the witness' identification is in fact the product of his own recollection;]“Any other evidence relating to the witness' ability to make an identification.”

14.   It should be noted that no corresponding petition for habeas corpus was filed in this case.

15.   CALJIC 4.50 instructs that:“The defendant in this case has introduced evidence for the purpose of showing that he was not present at the time and place of the commission of the alleged offense for which he is here on trial.   If, after a consideration of all the evidence, you have a reasonable doubt that the defendant was present at the time the crime was committed, he is entitled to an acquittal.”

16.   Requested instructions may be refused as “repetitious of instructions already given ․ (People v. Martinez (1987) 191 Cal.App.3d 1372, 1378–1379 [237 Cal.Rptr. 219];  People v. McCowan (1978) 85 Cal.App.3d 675, 679–680 [149 Cal.Rptr. 611].)”  (People v. Wright, supra, 45 Cal.3d at 1134, 248 Cal.Rptr. 600, 755 P.2d 1049.

LUROS,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

DANIELSON, Acting P.J., and ARABIAN, J., concur.

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